Secret Trusts - E

Front 1

Re Snowden

Back 1

A secret trust must be contrasted with merely placing a moral obligation upon the beneficiary to deal with the legacy in particular way and must impose a binding obligation, without discretion to act within its terms or no

Front 2

Moss v Cooper

Back 2

For a Fully Secret Trust, communication must take place before death, but doesn't matter if it's after the will is executed

Silence can be acceptance

Front 3

Stickland v Aldridge

Back 3

a secret trust can arise where in reliance on a promise to implement the trust by X, no Will is made

Front 4

Wallgrave v Tebbs

Back 4

One of the aspects that must be communicated is the existence of the trust

Front 5

Re Boyes

Back 5

One of the aspects that must be communicated is the terms of the trust and the beneficiary

If the half secret trust fails , a trustee cannot take beneficially, but holds on resulting trust for the testator's estate

Front 6

Re Colin Cooper

Back 6

One of the aspects that must be communicated is the trust property

Front 7

*Re Keen

Back 7

Communication by sealed envelop is acceptable, as long as the recipient is aware it is the terms of the trust and is willing to accept on this basis

Communication is treated as occurring when the envelop is handed over

For Half Secret Trust, communication must be before or at the time the will is executed

Front 8

Re Stead

Back 8

General rule is that if communication takes place after death, the person is not bound by the trust

Exception from this case requires:
- communication to at least one trustee before will is signed
- that the secret trustees are to be joint tenants

NB: this is a fully secret trust case involving personal property. No authority for extending beyond this

Front 9

Ottaway v Norman

Back 9

For secret trusts of land, are the formalities of s53(1)(b) required?

Upheld trust, but didn't address the issue of s53(1)(b)

Front 10

*Blackwell v Blackwell

Back 10

Dehors the will theory

Exception to rule that witness cannot benefit under the will

Cannot disclaim, because it's fraud on the testator's wishes and "equity will not allow a trust to fail for want of a trustee"

Front 11

Re Bateman’s Will Trusts

Back 11

For half secret trusts communication must take place before or at the time the will is signed

Language on the face of the will must be consistent with how the trust was communicated

There must be no reference to future communication (e.g. as outlined in the letter you will receive)

Front 12

Kasperbauer v Griffith

Back 12

Requirements for a secret trust:
- Communication
- Acceptance
- Reliance

Also has to comply with the three certainties

Secret trusts are constructive, and therefore in relation to land a s53(2) exception can apply

Front 13

Margulies v Margulies

Back 13

Intention: failed as too vague

Front 14

Re Maddock

Back 14

Stated you could discaim

Front 15

McCormick v Grogan

Back 15

Fraud theory: "equity will not allow a statute to be used as a cloak for fraud"

Cannot disclaim as it would be fraud

Front 16

Re Gardner (No 2)

Back 16

If the beneficiary of a secret trust dies before the testator the gift goes to their estate, rather than lapses, which is a pretty shoddy judgement.

Logic was that:
- secret trusts arise outside the will
- beneficiary's interest arises when communication and acceptance of the secret trust is made

However, legal title does not pass until death, and this means it would be impossible to change the will

High Court case, so does not have to be followed and is unlikely to be followed.

Front 17

Re Young

Back 17

beneficiary who witnesses a will can benefit under the trust, not under the will

Front 18

Re Baillie

Back 18

Do the formalities of s53(1)(b) required for secret trusts of land?

In this case the trust was not upheld, but this was a half secret tust at a time where half secret trusts were not considered to be valid and there was no mention of s53(1)(b)

Front 19

Gold v Hill

Back 19

Weird "don't let that bitch get anything" case

Front 20

S9 Wills Act 1837

Back 20

A will is only valid if (s.9):
It is made in writing;
It is signed by the testator, or at his direction and in his presence;
The testator intends that the signature give effect to the will;
The will is made or acknowledged in the presence of two or more witnesses, present at the same time; and
Each witness attests and signs, or acknowledges, his signature in the presence of the testator.

Front 21

S15 Wills Act 1837

Back 21

witness to a will cannot also be a beneficiary

Front 22

Conservative and Unionist Central Office v Burrell

Back 22

Is it an unincorporated association? Test:
- at least two members
- non-business purposes
- set of rules and obligations between members

Front 23

Re Koeppler’s Will Trust

Back 23

UA Def: “an association of persons bound together by identifiable rules and having an identifiable membership”

Front 24

Leahy v AG for New South Wales*

Back 24

Gift to UA interpreted as outright gift to members is rare, and extremely unlikely if it's land

Front 25

Re Recher’s Will Trusts*

Back 25

Five ways of interpreting money left to an UA:
- outright gift
- gift subject to rules of the association (so, addition to trust funds)
- trust for present and future members
- private purpose trust
- Re Denley purpose trust

Front 26

Re Grant’s Will Trusts

Back 26

Outright gift interpretation of UA is now only used when the club name is used as a convenient label for a group of people.

If addition to club funds, the club needs "internal control" so it is free to spend capital (although a small degree of external control will not be fatal)

Front 27

Cocks v Manners

Back 27

Authority for money to UA an ouright gift to members

Front 28

Re Denley’s Trust Deed*

Back 28

Requirements:
- non-abstract purpose
- ascertainable individuals
- complies with perpetuity rules

Pros: Trust, so should be used as intended

Front 29

Re Lipinski’s Will Trusts

Back 29

Re Denley purpose trust can apply to UAs

Arguably doesn't have to comply with perpetuity requirements - as long as members can spend capital it's sufficient

Front 30

Artistic Upholstery Ltd v Art Forma (Furniture) Ltd

Back 30

Addition to club funds is the prevailing view, but members can vote to end specific purpose.

Front 31

Re Horley Town FC

Back 31

Small degree of external control not fatal

Front 32

Morice v Bishop of Durham

Back 32

General Rule is that a trust needs a ascertainable beneficiaries

Must be sufficient certainty about what is intended

Front 33

Re Endacott

Back 33

Exceptions to requirement for an ascertainable beneficiary:
- particular animals (Pettingall v Pettingall)
- erection and maintenance of monuments and graves
- saying of private masses
- miscellaneous cases

Front 34

Re Thomposon

Back 34

Re Endacott exceptions creates trusts of imperfect obligation: valid if trustees willing to carry them out, but cannot be enforced by the courts

Front 35

Re Hooper

Back 35

Tablet & window in church = charitable

graves outside = PPT

Front 36

Mussett v Bingle

Back 36

erection of monument fine, maintenance failed of perpetuity grounds

Front 37

Masses

Back 37

Charitable if said in public (Gilmour v Coats)

PPT if said in private (Bourne v Keane)

Front 38

Re Kelly

Back 38

life of an animal not a valid perpetuity period as they can live for "an unpleasantly long time"

Front 39

Mussett v Bingle

Back 39

can assume that building a monument will take less than 21 years

Front 40

Re Hooper

Back 40

"as long as the law allows" overcomes perpetuity issues